Citation Nr: 9924506
Decision Date: 08/27/99 Archive Date: 09/08/99
DOCKET NO. 97-23 873A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to an effective date earlier than December 31,
1990, for a 100 percent rating for service-connected
schizophrenia.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. Gallagher, Counsel
INTRODUCTION
The veteran served on active duty from March 1978 to October
1978.
This matter comes before the Board of Veterans' Appeals
(Board) from a July 1996 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Montgomery,
Alabama, which granted an increased disability rating for
service-connected schizophrenia to 100 percent and assigned
an effective date for the increased rating of December 1,
1991. The veteran appealed the effective date assigned for
the 100 percent rating. During the course of the appeal
before the case was sent to the Board, the RO, in an August
1997 rating decision, granted an earlier effective date of
December 31, 1990.
A hearing was held on April 8, 1999, in Montgomery, Alabama,
before the undersigned, a member of the Board who was
designated by the Chairman to conduct the hearing pursuant to
38 U.S.C.A. § 7102(b) (West 1991) and who is rendering the
decision in this case.
To the extent that the veteran's claim for an effective date
back to 1988 or 1978 for an award of a 100 percent rating for
service-connected schizophrenia may be an attempt to raise a
motion of clear and unmistakable error (CUE) in the Board's
January 1991 decision which granted a 70 percent rating for
the service-connected schizophrenia, the Board notes that
such a motion may be made under the Board's Rules of Practice
concerning such motions. See 38 U.S.C.A. § 7111 (West 1991 &
Supp. 1999); 64 Fed. Reg. 2139 (Jan. 13, 1999), to be
codified at 38 C.F.R. § 20.1400, et seq. (1999).
In a statement from the veteran on VA Form 21-4138, Statement
in Support of Claim, received by the RO in January 1989, the
veteran claimed service connection for residuals of injuries
to the back and knees during service. These claims have not
been adjudicated and are referred to the RO for appropriate
action. See Godfrey v. Brown, 7 Vet. App. 398, 409 (1995)
(holding that, where a claim has been raised but there has
been no initial RO adjudication of it and it is "not in
appellate status", the Board did not err in referring that
claim to the RO for adjudication "without additional
specific instructions").
FINDINGS OF FACT
1. The Board granted a 70 percent rating and effectively
denied a 100 percent rating for service-connected
schizophrenia in a final decision dated January 7, 1991.
2. The veteran did not appeal the January 7, 1991, Board
decision to the United States Court of Appeals for Veterans
Claims (then the United States Court of Veterans Appeals).
3. On February 5, 1991, the RO received a discharge summary
from a period of hospitalization at a VA medical center
(VAMC) from December 31, 1990, to January 24, 1991, which
reflected diagnoses of schizophrenia, schizo-affective type;
chronic obstructive pulmonary disease; recent fracture of the
left hand (navicular bone), left hand in cast; and
osteoarthritis of the lumbar spine and knees; receipt of this
report constituted an informal claim for an increased
disability rating for service-connected schizophrenia.
4. An April 1991 rating decision confirmed and continued the
70 percent rating for service-connected schizophrenia, and
the veteran appealed this decision to the Board.
5. A June 1996 Board decision granted an increased rating to
100 percent under former section 4.16(c) of VA regulations.
6. In implementing the June 1996 Board decision the RO
assigned an effective date of December 31, 1990, for the 100
percent rating.
7. The veteran appealed the assignment of the December 31,
1990, effective date to the Board.
8. The veteran did not meet the underlying legal or
regulatory basis that would permit the assignment of a 100
percent disability rating for his schizophrenia prior to
December 1990, when his application for increased rating was
received.
CONCLUSION OF LAW
The criteria for an effective date for a 100 percent rating
earlier than December 31, 1990, have not been met.
38 U.S.C.A. § 5110(b)(2) (West 1991); 38 C.F.R. §§ 3.157(a),
(b)(1), 3.400(o)(2) (1998); Harper v. Brown, 10 Vet. App.
125, 126-27 (1997); VAOGCPREC 12-98 (Sept. 23, 1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual and Procedural Background.
Service connection for schizophrenia has been in effect in
this case since January 1981 when the RO assigned an initial
rating of 10 percent for the disability. In October 1981,
April 1982, and December 1983 rating decisions, the RO
considered claims for an increased rating and denied them,
confirming and continuing the 10 percent rating. The veteran
received notice of these decisions, but did not appeal them
and they are now final. 38 U.S.C.A. § 7105(c) (West 1991).
In September 1987, the RO received a statement from the
veteran that he was receiving inpatient care at a VAMC and
shortly thereafter the RO received the report of
hospitalization for a period from September to November 1987.
In January 1988, the RO granted a temporary total rating
under section 4.29 of VA regulations (hereafter "paragraph
29 benefits") and confirmed and continued the 10 percent
rating from December 1, 1987. Notice was sent to the veteran
in February 1988.
In April 1988, the RO received another statement from the
veteran claiming an increased disability rating for
service-connected schizophrenia. In May 1988, the RO
received a copy of the September-November 1987 VAMC report
and some VA progress notes. In a May 1988 rating decision,
the RO confirmed and continued the 10 percent rating and
notified the veteran of the decision.
A notice of disagreement was received in June 1988, a
statement of the case issued in July 1988 pertaining to the
issue of an increased rating for service-connected
schizophrenia, and a VA Form 1-9 substantive appeal received
in September 1988. In an October 1988 rating decision, the
RO granted an increased disability rating to 30 percent. In
a letter of notification, dated in November 1988, the RO
stated that it would consider the veteran's appeal for an
increased rating satisfied by the increase to 30 percent
unless the RO heard otherwise from him within 30 days.
In January 1989, the RO received a statement from the veteran
that he felt that he was "unemployable". He also requested
paragraph 29 benefits for a recent period of hospitalization
for his service-connected psychosis. In February 1989, the
RO received the report from the VAMC for a period from
December 1988 to January 1989. This report reflected that
the veteran was "competent but not employable". In an
April 1989 rating decision, the RO confirmed and continued
the 30 percent disability rating and provided notice to the
veteran.
In May 1989, the RO received a report from the VAMC for the
period from October to November 1988. This report reflected
that the veteran was "unemployable indefinitely." In a
June 1989 rating decision, the RO granted paragraph 29
benefits and confirmed and continued the 30 percent rating
and notified the veteran of this decision.
In August 1989, the RO received a statement from the veteran
in which he claimed that his condition was getting worse and
he was "not able to get or hold a job . . . ." In December
1989 and January 1990, the RO received duplicate copies of
VAMC reports already of record and two not previously of
record pertaining to the periods July-August 1989 and
September-November 1989. The latter two reports recorded the
veteran's complaints of having trouble holding a job and
reflected that he was temporarily totally disabled and
temporarily unemployable. In a January 1990 rating decision,
the RO granted paragraph 29 benefits for certain periods of
hospitalization and granted an increased rating to 50 percent
for the service-connected schizophrenia from September 1,
1989. The veteran was notified in January 1990 of this
decision.
In January 1990, the RO received a VA Consultation Sheet.
The examiner noted that the veteran's social and industrial
impairment was moderate to moderately severe. In February
1990, the RO confirmed and continued the 50 percent rating.
In February 1990, the RO received a December 1989-February
1990 VAMC report. The examiner expressed no opinion as to
the veteran's employability. It was noted in the report that
the veteran received Vocational Rehabilitation Therapy. In
March 1990, the RO granted paragraph 29 benefits and
continued the 50 percent rating. On April 20, 1990, the RO
received a letter from the veteran in which he stated that he
was rated as 50 percent disabled but was unable to hold a
job. He requested "total disability compensation at [100]
percent disabled." In May 1990, the RO received a March-May
1990 VAMC report. No opinion was rendered about the
veteran's employability. In a June 1990 rating decision, the
RO awarded paragraph 29 benefits and confirmed and continued
the 50 percent rating. The RO considered the veteran's April
1990 letter a notice of disagreement and issued a statement
of the case in June 1990 on the issue of an "increased
evaluation of service connected nervous condition." The
veteran filed a VA Form 1-9 substantive appeal in July 1990
perfecting his appeal to the Board. In November 1990, the RO
received an August-October 1990 VAMC report. No opinion was
rendered about the veteran's employability.
On January 7, 1991, the Board issued a decision granting an
increased disability rating to 70 percent disabling. In a
rating decision implementing this decision, the RO assigned
an effective date for the 70 percent rating from September 1,
1989. In February 1991, the RO received a report from the
VAMC for a period of inpatient care from December 31, 1990,
to January 24, 1991. In an April 1991 rating decision, the
RO granted paragraph 29 benefits for the period of
hospitalization and confirmed and continued the 70 percent
rating from February1, 1991.
In May 1991, the RO received from the veteran VA Form
21-8940, Veteran's Application for Increased Compensation
based on Unemployability. In a May 1991 rating decision the
RO adjudicated and denied the claim for a total rating based
on individual unemployability and notified the veteran. In
June 1991, the RO received a April-June 1991 VAMC report in
which the examiner recorded that the veteran had been unable
to hold a job for three years and had markedly severe social
and industrial impairment.
In August 1991, the RO received a statement from the veteran
requesting a 100 percent rating based on unemployability and
in September 1991 the RO received another formal application
form for this benefit. In October 1991, the RO received a
VAMC report showing a period of hospitalization for
July-August 1991. In an October 1991 rating decision, the RO
granted paragraph 29 benefits and confirmed and continued the
70 percent rating. In November 1991, the RO received a
September-November 1991 VAMC report in which it was noted
that the veteran had been unable to hold a job for four years
and had a markedly severe social and industrial impairment.
In December 1991, the RO received a notice of disagreement
with the denial of a 100 percent rating. In January 1992,
the RO issued a statement of the case on the issue of an
increased evaluation for service-connected schizophrenia.
The veteran perfected his appeal to the Board by filing a
substantive appeal in January 1992. In December 1992, the RO
received an April-June 1992 VAMC report. In January 1993,
the Board characterized the issue on appeal as "Entitlement
to a total schedular evaluation for schizophrenia under the
provisions of 38 C.F.R. § 4.16(c) (1991)." (Former section
4.16(c) was added to VA regulations in 1989 and removed in
1996. Compare 38 C.F.R. § 4.16(c) (1989) with 38 C.F.R.
§ 4.16(c) (1997)). The Board noted,
Inability to work has been cited by the
veteran and his representative as a basis
for his claim for an increased rating.
Since he does not have any other
service-connected disabilities, a total
rating based on individual
unemployability may not be assigned, but
a total schedular evaluation is
assignable if the mental disorder is
found to preclude substantially gainful
employment.
The Board remanded the case for the RO to consider the claim
for an increased rating under the provisions of section
4.16(c). In February 1993, the RO received a December
1992-January 1993 VAMC report in which it was noted that the
veteran had been unable to hold a job for four years and had
a markedly severe social and industrial impairment.
On remand the RO continued the 70 percent disability rating
in an April 1993 rating decision based on review of the VAMC
reports received in December 1992 and February 1993. The RO
issued a supplemental statement of the case in April 1993,
noting that reevaluation of the rating would be done after VA
examinations were conducted. In July 1993, the RO received a
May-July 1993 VAMC report. It was noted that the veteran had
had difficulty holding a job because of underlying paranoid
thinking and that he had a moderate degree of social and
industrial impairment. A July 1993 VA Social and Industrial
Survey is also of record. It was noted that the veteran had
been unemployed since 1989, that he had been employed in
construction work prior to that time, and that his arthritic
condition restricted lifting contributed to his
unemployability. The evaluation was that the reoccurring
hallucinations, depression, and paranoia experienced by the
veteran rendered him unemployable. In November 1993, the RO
awarded paragraph 29 benefits and continued the 70 percent
rating.
In January 1994, the RO received an October-December 1993
VAMC report. It was noted that the veteran had been unable
to work for four years and had markedly severe social and
industrial impairment. In December 1993, a VA Mental
Disorders examination was conducted which did not provide an
opinion about the veteran's employability. In April 1994,
another VA Mental Disorders examination was conducted. The
diagnosis was schizoaffective disorder, moderate, and the
degree of impairment was noted to be moderate. In an August
1994 rating decision, the RO awarded paragraph 29 benefits
and continued the 70 percent rating. In November 1994, the
RO received an April-May 1994 VAMC report in which the
examiner noted on Axis V that the veteran's Global Assessment
of Functioning was "moderate".
In January 1995, the RO received an October-November 1994
VAMC report in which the examiner noted that the veteran had
been unable to work for many years. In December 1995, the RO
received a VAMC report for an admission for one-day. In a
February 1996 rating decision, the RO awarded paragraph 29
benefits and continued the 70 percent rating.
The case was returned to the Board and in June 1996 the Board
granted a 100 percent rating under the provisions of section
4.16(c). 38 C.F.R. § 4.16(c) (1995). In a July 1996 rating
decision implementing the Board's decision, the RO assigned
an effective date for the 100 percent rating from December 1,
1991. The veteran appealed the effective date assigned for
the 100 percent rating. Before the case was sent to the
Board, the RO, in an August 1997 rating decision, granted an
earlier effective date of December 31, 1990.
In June 1998, the RO received a statement, dated March 1998,
from a Reverend Willie L. Drisker attesting to the fact that
the veteran had been seeking employment for certain periods
of time from January 1981 to the present. In a July 1998
rating decision, the RO confirmed the assignment of December
31, 1990, as the appropriate effective date for the 100
percent disability rating. This date was the date of
admission for a period of hospitalization, the report of
which was received by the RO after the Board's January 7,
1991, decision was issued.
With regard to the assignment of December 31, 1990, as the
effective date, the RO noted, in a July 1998 supplemental
statement of the case,
[T]he decision by the Board of Veteran's
Appeals of January 7, 1991, is final
based on the evidence considered by them.
The report of hospitalization beginning
December 31, 1990 was the first new
evidence received after that decision.
Therefore, the date of increase is
December 31, 1990.
Analysis.
Effective Date Earlier Than December 31, 1990,
For 100 Percent Rating For Service-connected Schizophrenia
Granted Under Former Section 4.16(c) Of VA Regulations.
The veteran has appealed to the Board the effective date of
December 31, 1990, assigned by the RO in an August 1997
rating decision for the 100 percent rating awarded by a June
1996 Board decision under then section 4.16(c) of VA
regulation which section has since been removed from the
regulations. On an August 1997 VA Form 9 substantive appeal
and at an August 1997 personal hearing before a VA hearing
officer, the veteran claimed that the effective date for the
100 percent rating should be set in 1988. He reiterated this
contention in a statement received by the RO in February
1998. The veteran wrote on the bottom of a copy of the
February 1998 statement received by the RO in May 1998 that
the effective date should be in March 1978. Thus, the issue
to be decided in this case is whether the date that the RO
assigned for the award of increased disability compensation
to 100 percent for service-connected schizophrenia is correct
or whether a date earlier than December 31, 1990, may be
assigned under the laws and regulations governing awards of
increased disability compensation.
The law provides as follows regarding an effective date for
an award of increased compensation: "Unless specifically
provided otherwise in this chapter, . . . a claim for
increase[] of compensation . . . shall be fixed in accordance
with the facts found, but shall not be earlier than the date
of receipt of application therefor." 38 U.S.C.A. § 5110(a)
(West 1991). Section 5110(b)(2) then "specifically
provide[s] otherwise" by stating as follows: "The
effective date of an award of increased compensation shall be
the earliest date as of which it is ascertainable that an
increase in disability had occurred, if application is
received within one year from such date." 38 U.S.C.A.
§ 5110(b)(2) (West 1991); see Hazan v. Gober, 10 Vet.App.
511, 520 (1997). The implementing regulations provide in
pertinent part:
(o) Increases (38 U.S.C. [§§] 5110(a)
and 5110(b)(2) . . .)
(1) General. Except as provided in
paragraph (o)(2) of this section . . . ,
date of receipt of claim or date
entitlement arose, whichever is
later. . . .
(2) Disability compensation. Earliest
date as of which it is factually
ascertainable that an increase in
disability had occurred if claim is
received within 1 year from such date
otherwise, date of receipt of claim.
38 C.F.R. § 3.400(o)(1), (2) (1998).
The effective date provisions for awards of increased
disability compensation include a general rule which provides
that an award based on a claim for increase of compensation
"shall be fixed in accordance with the facts found, but
shall not be earlier than the date of receipt of application
therefor." 38 U.S.C.A. § 5110(a) (West 1991). The
corresponding VA regulation expresses this rule as "date of
receipt of claim or date entitlement arose, whichever is
later." 38 C.F.R. § 3.400(o)(1) (1998). Under the general
rule provided by the law, an effective date for an increased
rating may be assigned later than the date of receipt of
claim -- if the evidence shows that the increase in
disability actually occurred after the claim was filed -- but
never earlier than the date of claim.
The law provides one exception to this general rule governing
claims "for increase" which exception governs awards "of
increased compensation". 38 U.S.C.A. § 5110(a), (b)(2)
(West 1991). If the evidence shows that the increase in
disability occurred prior to the date of receipt of claim,
the RO may assign the earliest date as of which it is
ascertainable that the increase occurred as long as the claim
for the increased disability rating was received within a
year of the date that the increase occurred. 38 U.S.C.A.
§ 5110(b)(2) (West 1991); 38 C.F.R. § 3.400(o)(2) (1998); see
Harper v. Brown, 10 Vet. App. 125 (1997); see also VA O.G.C.
Prec. Op. 12-98 (Sept. 23, 1998). Moreover, the Court stated
in Harper v Brown that the phrase "otherwise, date of
receipt of claim" in the paragraph (2) of the regulation
"refers to the situation in which a factually ascertainable
increase occurred more than one year prior to the receipt of
the claim for such increase." See Harper, 10 Vet. App. at
126; see also VA O.G.C. Prec. Op. 12-98 at 3.
In addition, the Court has indicated that it is axiomatic
that the fact that must be found in order for entitlement to
an increase in disability compensation to arise is that the
service-connected disability has increased in severity to a
degree warranting an increase in compensation. See Hazan v.
Gober, 10 Vet. App. 511, 519 (1992) (noting that, under
section 5110(b)(2) which provides that the effective date of
an award of increased compensation shall be the earliest date
of which it is ascertainable that an increase in disability
had occurred, "the only cognizable 'increase' for this
purpose is one to the next disability level" provided by law
for the particular disability). The Board notes that it is
also axiomatic regarding an increase to the next level of
disability that had occurred in the past that level of
disability must still exist presently because VA compensation
is awarded for current or present disability and not for
disability that existed in the past but no longer exists.
38 U.S.C.A. § 1110, 1131 (West 1991); see Degmetich v. Brown,
104 F. 3d 1328 (1997) (holding that Secretary's and Court's
interpretation of sections 1110 and 1131 of the statute as
requiring the existence of a present disability for VA
compensation purposes cannot be considered arbitrary and
therefore the decision based on that interpretation must be
affirmed); cf. Fenderson v. West, 12 Vet. App. 119, 126
(1999) (holding that, where a veteran appealed the original
or initial rating assigned for a disability, "staged"
ratings could be assigned for separate periods of time based
on facts found).
When the January 1991 Board granted an increased rating to 70
percent in this case, it also effectively denied a 100
percent rating. See Shoemaker v. Derwinski, 3 Vet. App. 248,
253 (1992) (where, on veteran's claim for increase in 30
percent rating, Board had awarded a 50 percent rating, remand
was required for Board to consider and discuss entitlement to
70 percent and 100 percent ratings provided in VA rating
schedule); see also AB v. Brown, 6 Vet. App. 35, 38 (1993)
(noting that, in a claim for an increased disability rating,
the claimant will generally be presumed to be seeking the
maximum benefit allowed by law and regulation and it follows
that such a claim remains in controversy where less than the
maximum available benefit is awarded). According to the
rating criteria then in effect, the Board had decided, based
on the evidence then of record, that the service-connected
schizophrenia was not manifested by active psychotic
manifestations of such extent, severity, depth, persistence
or bizarreness as to produce total social and industrial
adaptability but instead had decided that the
service-connected schizophrenia was manifested by lesser
symptomatology such as to produce severe impairment of social
and industrial adaptability. 38 C.F.R. § 4.132, Diagnostic
Code 9204 (1990).
Moreover, although the January 1991 Board decision did not
cite to section 4.16(c) or otherwise reflect consideration of
a 100 percent rating under that provision, the Board, in
denying a 100 percent schedular rating, also effectively
denied a total rating under section 4.16(c) because the issue
involved for a total rating under section 4.16(c) for a
veteran who was rated 70 percent disabled by a mental
disorder was essentially the same as was involved for a total
schedular rating, i.e., whether the veteran was totally
disabled for the purposes of employment. Compare 38 C.F.R.
§ 4.132, Diagnostic Code 9204 (1990) (requiring "total"
social and industrial inadaptability) with 38 C.F.R.
§ 4.16(c) (requiring evidence which shows that a
service-connected mental disorder "precludes" a veteran
from securing or following a substantially gainful
occupation). That the inquiries involved for both the total
schedular rating and the total rating under section 4.16(c)
were essentially the same is illustrated by the requirement
in section 4.16(c) that, where a veteran was precluded from
securing or following a substantially gainful occupation, a
100 percent schedular rating be assigned rather than a total
rating based on individual unemployability. Moreover, in
Johnson v. Brown, the Secretary acknowledged that section
4.16(c) was "superfluous" because "whenever
unemployability is caused solely by a service-connected
mental disorder . . . a 100 percent schedular rating is
warranted under section 4.132." See Johnson v. Brown, 7
Vet. App. 95, 97 (1994); 38 C.F.R. § 4.132 (1996).
Thus, by denying a 100 percent rating, the January 1991 Board
decided that the evidence did not show "total" industrial
inadaptability and that it did not show that the veteran was
"preclude[d]" from securing or following a substantially
gainful occupation. The veteran did not appeal the January
1991 Board decision to the Court and it is final.
38 U.S.C.A. § 7252 (West 1991 & Supp. 1999). Board decisions
are final unless the Chairman orders reconsideration, unless
new and material evidence is presented or secured to reopen
the disallowed claim, or unless the Board decision is
successfully challenged for "clear and unmistakable error".
38 U.S.C.A. §§ 5108, 7103(a), 7111(a) (West 1991 & Supp.
1999); 38 C.F.R. §§ 3.156, 20.1100 (1998); 64 Fed. Reg. 2139
(Jan. 13, 1999), to be codified at 38 C.F.R. §§ 20.1403,
20.1404 (1999).
A report of hospitalization will be accepted as an informal
claim for benefits if the report relates to a disability
which may establish entitlement. 38 C.F.R. § 3.157(a)
(1998). Receipt of a report of VA hospitalization pertaining
to a service-connected condition will be accepted as an
informal claim for increased benefits. 38 C.F.R. § 3.157(b)
(1998). The date of admission to a VA hospital will be
accepted as the date of receipt of claim. 38 C.F.R.
§ 3.157(b)(1) (1998). Acceptance of a report of treatment as
a claim for increase is subject to the payment of retroactive
benefits from the date of the report or for a period of 1
year prior to the date of receipt of the report. 38 C.F.R.
§ 3.157(a) (1998).
The RO assigned December 31, 1990, as the effective date for
the 100 percent rating awarded by the Board in its June 1996
decision because that was the date of admission to a VAMC for
treatment for, among other things, service-connected
schizophrenia as shown by the report for such treatment, and
that report -- although dated before the Board's January 1991
decision -- was received by the RO after the Board's decision
granting an increased rating to 70 percent. Thus, the
December 31, 1990, VAMC report was not before the Board in
January 1991 when it decided that a 70 percent rating, and
not a 100 percent rating, was warranted. Because all reports
of treatment dated earlier than December 31, 1990, were
before the Board when it rendered its decision in January
1991, the RO could not find that a 100 percent rating was
"ascertainable" based on any of those reports because to do
so would have undermined the finality of the January 1991
Board's decision that those earlier reports only showed a
degree of disability commensurate with the criteria for a 70
percent rating. 38 C.F.R. § 3.400(o)(2) (1998); see Donovan
v. West, 158 F.3d 1377, 1382 (Fed. Cir. 1998), quoting
Donovan v. Gober, 10 Vet. App. 404, 409 (1997) (an RO "must
not be placed in the anomalous position of reviewing the
decision of the BVA, a superior tribunal."); see also Smith
v. Brown, 35 F.3d 1516, 1526 (Fed. Cir. 1994) (noting that it
would be "odd[]" to "permit an inferior [regional office]
to collaterally review the actions of a superior [the Board],
at least as an initial matter.").
In Hazan v. Gober and more recently in Swanson v. West, the
Court considered situations similar to that which arises in
this case, e.g., in Hazan, whether the Board, in a March 1994
decision denying an effective date earlier than April 1990
for an increased rating for a service-connected disability,
could have or should have considered evidence which had been
before the Board in March 1990 when the Board had denied an
increased rating for the service-connected disability. Hazan
v. Gober, 10 Vet. App. 511 (1997); Swanson v. West, No. 95-
1082, (U.S. Vet. App. June 23, 1999). In Hazan, the veteran
appealed a March 1988 rating decision which confirmed and
continued a 20 percent rating for the service-connected
disability to the Board. In August 1989, the veteran, who
was a physician, testified before the Board. In March 1990,
the Board denied an increased disability rating for the
service-connected disability. In May 1990, the veteran filed
a claim for an increased rating for the disability and
submitted a report from a private doctor dated April 1990.
In a November 1990 rating decision, the RO granted an
increased rating to 40 percent and assigned the April 1990
date of the report of the private physician as the effective
date for the increase. The veteran appealed the assignment
of the April 1990 effective date to the March 1994 Board,
arguing that under section 3.400(o)(2) an effective date as
early as August 1989 could be assigned because that date was
within one year of the receipt of the May 1990 claim for an
increased rating and because it was "ascertainable" from
the August 1989 hearing testimony that an increased in
disability had occurred. The March 1994 Board held that
there was no defect in the RO's assignment of the April 1990
effective date.
In Hazan, and later in Swanson, the Secretary argued that, in
such situations, in the absence of clear and unmistakable
error (CUE) or obvious error in the Board's earlier decision,
"a discussion of the evidence predating the [earlier] Board
decision would be pointless simply because an effective date
prior to that date is impermissible". Swanson, No. 95-1082,
slip op. at 9. The Court has rejected this argument,
however, stating,
[T]he Secretary's position
is . . . fundamentally mistaken insofar
as it suggests that the Board (and the
RO) could not properly have considered
the [evidence predating the date of the
claim for an increase] at all. In point
of fact, as the Court's caselaw
[and] . . . section
5110(b)(2) . . . demonstrate, VA must
review all the evidence of record (not
just evidence not previously considered)
once a claimant has submitted a
well-grounded claim for an increased
disability rating. . . . [T]he question
before the Board was: On the basis of
that evidence [submitted in connection
with the increased-rating claim] and all
prior evidence, when was an increase in
disability "ascertainable"? The Board
erred as a matter of law in making that
"ascertainable" decision only on the
basis of the new evidence. We cannot say
what result would have flowed from
consideration of all the evidence of
record . . . . Hence, that matter will
be remanded . . . .
In carrying out this analysis on remand,
the Board must determine under the
evidence of record the earliest date that
the increased rating was
"ascertainable" within the meaning of
section 5110(b)(2). . . . If it was so
ascertainable on a date within one year
before the date of the
veteran's . . . application for such a
rating increase, the Board should proceed
to assign that date as the effective date
for the 40% rating. If it was so
ascertainable more than one year before
the date of the veteran's application,
the Board must determine whether the
language "within one year from such
date" in section 5110(b)(2), see also
38 C.F.R. § 3.400(o)(2), permits or
precludes the assignment of an effective
date earlier than April 27, 1990, and
provide a statement of reasons or bases
for any such determination. See 38
U.S.C. § 7104(d)(1); cf. 38 C.F.R.
§§ 3.155(a) (formal claim received within
one year after informal claim "will be
considered filed as of the date of
receipt of the informal claim";
3.157(b)(2) (date of receipt of report of
private examination is date of receipt of
informal claim for rating increase);
3.157(a) ("a]cceptance of a report of
examination or treatment as a claim for
increase is subject to . . . the payment
of retroactive benefits from the date of
the report or for a period of 1 year
prior to the date of receipt of the
report") (1996).
Hazan, 10 Vet. App. at 521-22; see also Swanson, No. 95-1082,
slip op. at 9. In Swanson, the Court noted that, after
Hazan, the VA General Counsel issued a precedent opinion that
was in accord with Hazan. VAOGCPREC 12-98, at point 5 (Sept.
23, 1998) (concluding "that, when a veteran submits a claim
alleging an increase in disability within one year prior to
VA's receipt of the claim and medical evidence substantiates
the increased disability, the effective date of an award of
increased disability compensation must be determined based
upon the facts of the particular case . . . . [;] the record
as a whole, including testimonial evidence, must be analyzed
for this purpose"); see also 38 U.S.C.A. §§ 7104(c) (Board
is bound in its decisions by precedent opinions of VA General
Counsel); 38 C.F.R. § 19.5 (1998) (same).
Thus, in accordance with the Court's holdings on this matter
in Hazan and Swanson, the Board will review all the evidence
of record in this case to determine the earliest date that it
was "ascertainable" within the meaning of section
5110(b)(2) and section 3.400(o)(2) that the veteran's
service-connected schizophrenia rendered him unemployable,
i.e., precluded from securing or following a substantially
gainful occupation. 38 C.F.R. § 4.16(c) (1996). "If it was
so ascertainable on a date within one year before the date of
the veteran's . . . application for such a rating increase,
the Board [will] assign that date as the effective date for
the [100 percent] rating." Hazan, 10 Vet. App. at 521.
"If it was so ascertainable more than one year before the
date of the veteran's application, the Board [will] determine
whether the language 'within one year from such date' in
section 5110(b)(2), see also 38 C.F.R. § 3.400(o)(2), permits
or precludes the assignment of an effective date earlier than
[the date the application was received], and provide a
statement of reasons or bases for any such determination."
Hazan, 10 Vet. App. at 521-22.
In this case, the date of receipt of the application for an
increased rating for the service-connected schizophrenia was
February 5, 1991, the date that the December 1990-January
1991 VAMC discharge summary was received. The date of
admission for that period of hospitalization -- December 31,
1990, -- is the current effective date assigned. Under the
Court's holdings in Hazan and Swanson, the Board will examine
all the evidence of record to determine the earliest possible
date that is was ascertainable that the veteran was rendered
unemployable by his service-connected schizophrenia.
In this regard, the Board notes that service connection was
granted for schizophrenia in March 1981. A March 1981 VA
examination report showed a diagnosis of schizophrenic
disorder, residual type. The Board notes that the fourth
edition of the Diagnostic and Statistical Manual of Mental
Disorders (DS- IV) provides the following with regard to this
diagnosis:
The Residual Type of Schizophrenia should
be used when there has been at least one
episode of Schizophrenia, but the current
clinical picture is without prominent
positive symptoms (e.g., delusions,
hallucinations, disorganized speech or
behavior). There is continuing evidence
of the disturbance as indicated by the
presence of negative symptoms (e.g., flat
affect, poverty of speech, or avolition)
or two or more attenuated positive
symptoms (e.g., eccentric behavior,
mildly disorganized speech, or odd
beliefs). If delusions or hallucinations
are present, they are not prominent and
are not accompanied by strong affect.
The course of the Residual Type may be
time limited and represent a transition
between a full-blown episode and complete
remission. However, it may also be
continuously present for many years, with
or without acute exacerbation.
DSM-IV at 289; see 38 C.F.R. § 4.125 (1998) (diagnoses of
mental disorders must conform to DSM-IV for VA rating
purposes). In addition to the diagnosis of "residual" type
schizophrenia, the March 1981 examiner noted that the
veteran's social and industrial capacity was "mildly
impaired". Similarly, on a June 1981-September 1981 VAMC
report, it was noted that the veteran was employable and
planned to return to college. His prognosis was fair. On a
March 1982 VAMC report, it was noted that the veteran was
"unemployable until he completes vocational training". On
an August 1983-October 1983 VAMC report, it was noted that
the veteran worked closely with a vocational counselor and
was placed on a job. He showed moderate social and
industrial impairment and his prognosis was fair.
The Board concludes from these early reports, even when
viewed in light of the subsequent history of the veteran's
disability, that it was not "ascertainable" that the
veteran was unemployable as a result of his service-connected
schizophrenia as of any date in the early 1980's covered by
these reports. Periods of acute exacerbation requiring
hospitalization exceeding 21 days were compensated during
this period by the award of temporary total ratings. See
38 C.F.R. § 4.29 (1998). However, the veteran's disability
was shown to be mild to moderate generally and he was
receiving vocational training in an effort to assist him in
obtaining and maintaining a job.
A September-November 1987 VAMC report shows the veteran was
again hospitalized primarily for an exacerbation of his
service-connected schizophrenia. Upon discharge, his
condition was "much improved" although his prognosis was
"guarded". With regard to "employability" the doctor
noted that the veteran could "resume his rehospitalization
activities", although it is not clear whether the veteran
was working or was able to work just prior to his
hospitalization. A May 1988 VA Abbreviated Medical Record
showed that the veteran reported for treatment stating that
he was feeling alright and just wanted to be checked. He
stated that he did not need medication. The treatment team
counseled him to stay to no avail, and he was discharged to
be follow-up on an outpatient basis. The examiner noted that
"employability is pending until completion of his outpatient
follow-up". An employability determination is not reflected
on VAMC reports from August-September 1988 and September
1988. The first report showed treatment for dysthymic
disorder, not schizophrenia, as well as for
nonservice-connected low back pain and chronic dental caries.
The second report showed treatment for an acute exacerbation
of the service-connected schizophrenia in addition to
treatment for back pain from degenerative joint disease and
for dental caries.
The Board concludes from these 1987-88 reports, even when
viewed in light of the subsequent history of the veteran's
disability, that it was not "ascertainable" that the
veteran was unemployable as a result of his service-connected
schizophrenia alone. Periods of acute exacerbation requiring
hospitalization exceeding 21 days were compensated by the
award of temporary total ratings. See 38 C.F.R. § 4.29
(1998). However, during these periods of hospitalization,
the veteran was also treated for nonservice-connected
disabilities such as low back pain and degenerative joint
disease. No specific finding had been made showing
unemployability.
On an October-November 1988 VAMC report, it was noted that
the veteran was "unemployable indefinitely" and on a
December 1988-January 1989 VAMC report, it was noted that the
veteran was "not employable". The veteran was also treated
for nonservice-connected osteoarthritis of the lumbosacral
spine, knees, and ankles during this period, and the reports
did not specify whether examiners determined that the veteran
was unemployable based on his service-connected schizophrenia
alone. He was compensated for the periods of hospitalization
by awards of paragraph 29 benefits. On a VAMC report from
July 1989-August 1989, it was noted that the veteran was
"temporarily" totally disabled and "temporarily"
unemployable.
On a VAMC report from September 1989-November 1989, the
veteran's complaints of having trouble holding a job were
noted but no determination was made about employability.
During both of these periods of hospitalization, the veteran
was also treated for nonservice-connected chronic
degenerative arthritis, although the July 1989-August 1989
report indicated that he was "temporarily" unemployable due
to his service-connected mental condition alone. A January
1990 VA Consultation Sheet reflected social and industrial
impairment of a moderate to moderately-severe degree. VAMC
reports from December 1989-February 1990, from March 1990-May
1990, and from August 1990-October 1990 reflected no opinion
about employability.
The Board notes that unemployability was specifically noted
in the hospitalization reports from late 1988 although the
veteran was not treated solely for his service-connected
schizophrenia during this time. Moreover, the later reports
from the period from July 1989 through October 1990 appear to
show some improvement as he was considered merely
"temporarily" unemployable or no determination was made
about employability at all. In addition, his social and
industrial impairment was described as moderate to
moderately-severe in January 1990 rather than as "severe",
"pronounced", "total" or other similar terms that more
closely descriptive a total degree of impairment.
Except in the case of the assignment of an initial rating,
the Board notes that an increase in disability that is
"ascertainable" for the purposes of an increased disability
rating not only must be an increase to the next level of
disability as described in the rating criteria but also must
be shown by the evidence of record to be more than an acute
or episodic exacerbation of an otherwise lesser degree of
disability. See Fenderson, 12 Vet. App. at 126
(distinguishing between an initial or "original" rating and
an "increased" rating and holding that, where a veteran
appealed the original or initial rating assigned for a
disability, "staged" ratings could be assigned for separate
periods of time based on facts found); Hazan, 10 Vet. App. at
519 (noting that, under section 5110(b)(2) which provides
that the effective date of an award of increased compensation
shall be the earliest date of which it is ascertainable that
an increase in disability had occurred, "the only cognizable
'increase' for this purpose is one to the next disability
level" provided by law for the particular disability). The
VA has a mechanism for compensating such periods of acute
exacerbation which is by means of the award of paragraph 29
benefits. See 38 C.F.R. § 4.29 (1998). Moreover, that the
evidence must indicate that the increased level of disability
is a stable level of disability and not an acute increase is
also contemplated by the Court's holding in Francisco v.
Brown that, while VA regulations require review of the
recorded history of a disability by the adjudicator to ensure
a more accurate evaluation, the regulations do not give past
medical reports precedence over the current medical findings.
Where an increase in the disability rating is at issue, the
present level of the veteran's disability is the primary
concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
This concept is also contemplated in the holding in Degmetich
v. Brown which emphasized that VA compensation is to be
awarded for a present disability and not a disability that
existed in the past but is no longer shown to exist
currently. Degmetich, 104 F. 3d 1328 (holding that
Secretary's and Court's interpretation of sections 1110 and
1131 of the statute as requiring the existence of a present
disability for VA compensation purposes cannot be considered
arbitrary and therefore the decision based on that
interpretation must be affirmed). Therefore, the Board
concludes that an award of increased compensation should be
granted for a present or current increase to the next
disability level and not an increase to the next disability
level that occurred in the past but does not continue at that
level to the present day.
Thus, the questions confronting an adjudicator who had
reviewed the evidence dated up until October 1990 in this
case would have been (1) whether this veteran had a moderate
to moderately-severe degree of disability generally and who
from time to time required hospitalization for periods of
acute exacerbation -- brought on perhaps at times by
noncompliance with medication -- during which he could be
stabilized by medication and therapy and returned to the
usual level of prehospitalization functioning or (2) whether
this veteran was totally disabled by his service-connected
mental disorder; or (3) whether the periods of acute
exacerbation requiring hospitalization have been frequent
enough over a long enough period of time that it can be
determined that this veteran, although experiencing a
moderate to moderately-severe degree of disability generally
is nevertheless unemployable due to the frequency of the
periods of exacerbation. In making this determination, the
adjudicator may decide to assign more probative value to the
most recent reports, i.e., those in the 1990's which did not
indicate unemployability rather than two reports in late 1988
which did. Francisco, 7 Vet. App. at 58.
The question confronting the Board today, as articulated by
the holdings of the Court in Hazan and Swanson, is whether it
is "ascertainable" from the evidence of record dated prior
to December 31, 1990, when viewed in the context of all the
evidence, -- i.e., the evidence that has been added to the
file connection with the February 5, 1991, claim which
ultimately resulted in the award of a 100 percent rating
under former section 4.16(c) springs -- that the veteran was
rendered unemployable by his service-connected schizophrenia.
See Hazan, 10 Vet. App. at 521 (noting that the principle of
collateral estoppel forbids relitigation of the same issue on
the same facts but stating that, by definition in an
increased rating case, the claim is well grounded because of
some new evidence as to an increase in disability and holding
that, at the time that that new evidence was submitted, the
question was, "On the basis of that evidence and all prior
evidence, when was an increase in disability
'ascertainable'?").
In this regard, the Board notes that the veteran was
hospitalized primarily for treatment of his service-connected
schizophrenia on five occasions between July 1989 and October
1990 after examiners had stated that he was unemployable in
reports in October-November 1988 and December 1988-January
1989. He was subsequently hospitalized approximately ten
times (not including the one-day admission in December 1995)
primarily for his service-connected schizophrenia over the
course of nearly four years between December 1990 and
November 1994 or roughly about two to three times a year.
Moreover, like the reports prior to December 1990, the later
reports received in conjunction with the February 1991 claim
which resulted in the 100 percent disability rating being
assigned consist of earlier reports in which the veteran's
inability to hold a job is noted and his impairment is
described as "markedly severe" and later reports which do
not render an employability determination and describe the
impairment as "moderate".
Thus, the evidence depicts a case in which, in general, the
veteran's degree of disability has fluctuated since late 1988
between moderate and moderately-severe and markedly-severe
and which his condition has been interspersed by periods of
acute exacerbation or worsening of symptomatology requiring
hospitalization two to three times a year over the course of
six years between late 1988 and late 1994. The Board
concludes that, when the evidence of the two VAMC reports in
late 1988 (i.e., the ones dated October-November 1988 and
December 1988-January 1989) in which the veteran was
described as unemployable are viewed in the context of six
years of evidence received subsequently, the subsequent
evidence shows that the veteran has been unemployable since
late 1988 -- not on the basis of the degree of disability
generally but on the basis of the frequency of the periods of
acute exacerbation requiring hospitalization (two to three
times a year) and the duration of time over which those
periods of exacerbation have been occurring (six years). The
Board finds those periods of exacerbation of sufficient
frequency and duration to interfere with employability. See
38 C.F.R. § 4.2 (1998) ("Each disability must be considered
from the point of view of the veteran working or seeking
work."); cf. 38 C.F.R. § 3.321(b)(1) (1998) (noting that, to
warrant referral for consideration of an extraschedular
rating, the governing norm in these exceptional cases is a
finding that the case presents an exceptional or unusual
disability picture with such related factors as marked
interference with employment or frequent periods of
hospitalization) (emphasis added).
In so concluding, the Board emphasizes that an assessment of
"frequency" of periods of hospitalization can only be made
over a sufficient period of time and cannot be based on one
or two reports of hospitalization. Concerning this, the
Board notes that determining whether an increase in
disability to the next disability level has occurred or
whether sufficient frequency of periods of hospitalization to
render a veteran unemployable has been shown is often not
possible from one single medical report or document on one
given date. Rather, the Board observes that many times the
determination is not that simple and clear cut or, given the
nature of certain disabilities and the rating criteria for
evaluating them, is it expected to be. In such cases, where
it is clear to the adjudicator that an increase in disability
has occurred -- but that fact is "ascertainable" not from
any single report but from review, say, of several medical
reports spanning a period of time -- the assignment of the
date of claim may be the most appropriate effective date
under the provisions of section 3.400(o)(2).
This is particularly so in cases where the medical evidence
is dated both before and after the date of claim. In such
cases, it may be appropriate for the RO or the Board to
assign the date of claim as the effective date because there
is no one particular date -- i.e., no "'earliest' date on
which it is factually ascertainable that an increase in
disability had occurred". 38 C.F.R. § 3.400(o)(2) (1998).
Thus, the requirements of paragraph (2) of 38 C.F.R.
§ 3.400(o) are two: (1) a specific date on which it is
factually ascertainable that an increase occurred and (2) a
claim received within one year of that date. Therefore, the
phrase "otherwise date of claim" may be construed, in
addition to having the meaning ascribed to this phrase by the
Court in Harper (i.e., as applying to situations in which the
increase in disability occurred more than one year before the
date of receipt of claim), as contemplating situations in
which it is not factually ascertainable that an increase
occurred on any one particular date either before or after
the date of claim and as stating that, in those situations,
the date of claim should be assigned. 38 C.F.R.
§ 3.400(o)(2) (1997) ("Earliest date as of which it is
factually ascertainable that an increase in disability had
occurred . . . otherwise, date of receipt of claim.").
This interpretation enjoys some support in the legislative
history of 38 U.S.C. § 5110(b)(2), which was added to the law
in 1975. The Veterans Disability Compensation and Survivor
Benefits Act of 1975, Pub. L. No. 94-71, § 104(2), 89 Stat.
395, 396, added section 3010(b)(2) to title 38, United States
Code (currently codified as amended at 38 U.S.C.
§ 5110(b)(2)). As noted in the opinion of the General
Counsel cited by the Court in Swanson, this provision was
added in order to "permit retroactive payment of increased
compensation from the date of increase in disability up to 1
year when that date is ascertainable." Cong. Rec. H23,937
(daily ed. July 22, 1975) (statement of Rep. Roberts)
(emphasis added); see VA O.G.C. Prec. Op. 12-98 at 3 (Sept.
23, 1998) . The implication -- when read in the context of
the phrase, "otherwise, date of claim", that was included
in the subsequently codified regulation -- is that, when a
specific date of an increase is not ascertainable -- as when
it is ascertained from review of several reports, dated both
before and after the date of claim, considered as a whole --
the date of claim should be assigned.
The Board notes, however, that the General Counsel's
September 1998 opinion appears to have rejected this
interpretation of paragraph (2), stating that, "The
effective date of an increased rating would be the date of
claim only if the claim is not received within the year
following the increase in disability, as explained in
Harper." VA O.G.C. Prec. Op. 12-98 at 3 (emphasis added).
In this regard, the General Counsel has interpreted the
holding in Harper as restricting the "otherwise, date of
claim" phrase only to situations where the claim is received
more than one year after the date of increase which is more
limiting language than the Court itself used in Harper where
it noted one situation to which the phrase, "otherwise, date
of claim", referred without precluding application to other
situations. See Harper, 10 Vet. App. at 126.
The date of actual receipt of claim -- February 5, 1991, --
is not for application in this case because the RO has
already assigned a date earlier than that, i.e., December 31,
1990, for the 100 percent rating, and that decision is
consistent with VA regulations governing the date that should
be assigned when the "claim" for an increased rating that
is received is in the form of a report of VA hospitalization.
These regulations provide for that the date of admission to
the VA hospital be accepted as the date of receipt of claim.
38 C.F.R. § 3.157(b)(1) (1998) ("The date of . . . admission
to a VA . . . hospital will be accepted as the date of
receipt of a claim."). As noted above, the Board has
concluded that the earliest date that unemployability was
"ascertainable" is October 31, 1988, the date of admission
to a VAMC for a period of hospitalization where the examiner
concluded that the veteran was "unemployable indefinitely"
-- only when that report is viewed in the context of six
years of subsequently received reports showing a sufficient
frequency of periods of exacerbation of symptomatology over a
sufficient duration. Applying the Court's test in Hazan, the
Board must then assign that date as the effective date '[i]f
it was so ascertainable on a date within one year before the
date of the veteran's . . . application for such a rating
increase". However, in this case the October 31, 1988, date
is not within one year of the December 31, 1990, claim which
ultimately resulted in the 100 rating under section 4.16(c).
Therefore, October 31, 1988, cannot be assigned under that
rule.
Under the second part of the test in Hazan if the date that
it was ascertainable was more than one year before the date
of the veteran's application, "the Board [will] determine
whether the language 'within one year from such date' in
section 5110(b)(2), see also 38 C.F.R. § 3.400(o)(2), permits
or precludes the assignment of an effective date earlier than
[the date the application was received], and provide a
statement of reasons or bases for any such determination."
Hazan, 10 Vet. App. 521-22. The Board notes that October 31,
1988, is a date that is more than one year before the
December 31, 1990, date of claim in this case, and the Board
concludes that the language "within one year from such
date" in section 5110(b)(2) of the statute and in section
3.400(o)(2) of the regulation precludes, rather than permits,
the Board from assigning a date earlier than the receipt of
application for the following reasons and bases:
First, the plain meaning of the language "within one year
from such date" in both the statute and the regulation
refers to the application being received within one year of
the date that an increase in disability is ascertainable. If
unemployability is -- viewed in the context of six years of
subsequent evidence -- as "ascertainable" as early as
October 31, 1988, but the application for an increased rating
was not received until December 31, 1990, the application was
not received within one year from the date that the increase
was ascertainable.
Second, the decision of the Court in Harper precludes the
Board from assigning an effective date earlier than the date
the application was received where unemployability was
"ascertainable" in October 1988 and the application was
received in December 1990 because the Court interpreted the
phrase, "otherwise date of claim" in section (o)(2) of the
regulation as meaning that the date of claim should be
assigned in cases were the increase in disability is
ascertainable more than one year before the application is
received.
Finally, the decision of the General Counsel in VAOGCPREC 12-
98 precludes the Board from assigning an effective date
earlier than the date the application was received where
unemployability was "ascertainable" in October 1988 and the
application was received in December 1990 because the General
Counsel held that the date of claim should be assigned in
such situations, as the Court explained in Harper. VAOGCPREC
12-98 at 3.
For these reasons and bases, the Board concludes that an
effective date earlier than December 31, 1990, for a 100
percent rating for service-connected schizophrenia assigned
under former section 4.16(c) of VA regulations is not
warranted in this case.
ORDER
An effective date earlier than December 31, 1990, for a 100
percent rating for service-connected schizophrenia is denied.
JOAQUIN AGUAYO-PERELES
Member, Board of Veterans' Appeals